Employees, whether public or private sector, should be aware that they have very few legal privacy rights at work, especially when talking or sending messages from an employer-owned cell phone.
The use of emerging technologies in the workplace, including cell phones, PDAs and laptops, have created new ways for employees to act inappropriately while at work. Not only have these devices made it easier for employees to use work time for non-work purposes, like paying bills on-line, chatting to friends over instant message and sending personal emails and text messages, they also have made it easier for employees to engage in behavior that violates company policies, including anti-discrimination and sexual harassment policies.
However, these technologies also have made it easier for employers to monitor employee activities and find out when they are behaving inappropriately.
Public Employer Rights to Monitor Employee Communications
Legally, public employers are allowed to monitor employee activities while at work as long as the employee does not have a reasonable expectation of privacy in the particular activity. For example, courts have held that employees have a reasonable expectation of privacy while using the restroom, but not in their general workspace.
When employers are monitoring employee communications on employer-owned equipment, the rights may depend on the broader circumstances. Courts have generally held that if an employer has a written policy putting employees on notice that they their usage of communications devices may be subject to monitoring, then employees do not have a reasonable expectation of privacy in the communications.
However, employers must regularly and routinely enforce their stated policies for them to be enforceable. In cases where a monitoring policy existed but was not enforced, courts have ruled in favor of employees, finding that they did have a reasonable expectation of privacy in the communication.
The U.S. Supreme Court is expected to clarify the line between employee privacy rights and employer rights to monitor employee activities later this year. Last December, the Court agreed to review City of Ontario v. Quon. In this case, a California SWAT member lost his job after it was discovered he had sent sexually explicit text messages from a city-issued phone.
The Ontario police department had a written communications policy putting employees on notice that they did not have privacy expectations in electronic communications. However, a lieutenant had told the SWAT member and other officers that they could use the phones for personal use and would not be subject to monitoring as long as they paid any overage charges. Since the communications policy was not routinely enforced, the District Court and Ninth Circuit both found in favor of the employee.
Employee Best Practices: Act Professional at all Times
Whether using a company-issued cell phone, computer or other electronic communications device, employees should not change their professional behaviors when using these devices. The best rule for an employee is to avoid communicating things over employer-owned communication device that the employee would not want his or her boss to know.
This is particularly true when the communication includes sexual innuendo, racially insensitive comments, inappropriate jokes or other communications that violate the company's sexual harassment and anti-discrimination policies.
Employees must remember that, regardless of intent, off-color jokes or forwarded messages can cause trouble at work and should be avoided.
Contact an Experienced Employment Law Attorney
If you have been subject to harassment or discrimination via email or text message from a co-worker or supervisor, you have the right to take action against the responsible party. Generally, you will need to first file a complaint in accordance with your employer's internal complaint procedure. If you already have done this or if your complaint was not taken seriously, an attorney can help.
Employers are required by state and federal law to provide discrimination and harassment-free workplaces. If an employer failed to fully investigate your claim or did not find in your favor, you may have other legal options available, including filing a claim with the Equal Employment Opportunity Commission (EEOC) and/or filing a lawsuit against your employer.
For more information, contact an experienced employment law attorney.